Handling Employee Violation of your Social Media Policy

Remember Cisco Fatty, a.k.a. the University of California student who -- back in early 2009 -- posted the infamous tweet about an internship with the software giant?

"Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."

You already know how this story ends. A Cisco employee discovered the tweet, the offer was rescinded, and a firestorm of publicity ensued. Since this was among the first cases where a status update resulted in the loss of a job, “Cisco Fatty” became a case study/cautionary tale of social media recruitment that will live on in the history books of Web 2.0.

These days, however, status firings have become downright common. From CNN editors and waitresses, to hospital employees and, yes, even pieorogis, it seems no one is immune to being shown the door over a post that doesn’t sit well with their boss. However, despite the increasing number of dismissals related to social media, most have remained internal matters between employers and their staff.

That is, until now.

Guidelines to Help Formulate your Social Media Strategy
In one recent case that involved a company's social media policy, the National Labor Relations Board (NLRB) filed a complaint against an employer who fired a staff member for badmouthing her supervisor on Facebook. The Facebook case was eventually settled out of court and required that the company not discipline employees who are asking for union representation; the company will also revise their employee handbook policy around workers discussing work conditions with their co-workers.

This is obviously scary territory for employers. On one hand, you have the fear of disgruntled employees doing some serious company brand damage online. On the other, you have the risk of being sued for violating the National Labor Relations Act.

To obtain some perspective on this issue from a legal perspective, we spoke with Eric Kinder, a Labor and Employment member with Spilman Thomas and Battle PLLC and with Donna Galatas and Jackie Torres from The Galatas Group to weigh in on the human resource standpoint. Here is what they had to say:

1.) Are social media posts considered "free speech"?

Kinder: "Free speech" in the employment setting is a loaded term. Private employers don't have First Amendment concerns in that there is no constitutional duty from them to allow or tolerate "free speech," but they do have to consider the National Labor Relations Act and various state laws that prohibit employers from disciplining employees for off-duty conduct.

While many of the off-duty conduct laws were drafted to address an employee's use of tobacco off the worksite, many of them are written broadly enough to encompass use of social media, blogging, or other online activities. In addition, the NLRA protects an employee's right to engage in "concerted activities" regarding the terms and conditions of employment.

Many online activities, especially something like a Facebook post regarding wages or working conditions that is shared with co-workers, are forms of "concerted activity" that are protected under the law until it reaches the point of being "disloyal" to the employer. "Disloyal" can be complicated to define, but it distinguishes between comments that are merely complaining about work from ones that actively seek to reduce business by driving customers away.

Galatas /Torres: We strongly believe that social media posts should be considered “free speech,” however, there are certain aspects of social media use that should be considered within the scope of an employers’ control.

Employers should consider participating in appropriate social media venues and should put in place a social media policy to supplement an internet use policy. A few examples of specific issues which should be addressed include: clarifying infringements on company confidential information and intellectual property rights, slanderous or libelous statements that cannot be supported by evidence and are detrimental to the business, and failing to state that comments made are personal opinion and not made on behalf of the company.

Kinder: This will vary from state to state, as more states are passing all-encompassing "off duty conduct" laws that prohibit, at least potentially, an employer's ability to discipline an employee for online actions. That does not mean employers are without any mechanism for regulating an employee's online activity.

First, an employer has the right to discipline employees for their online behavior during working hours; an employee is at work to do work, not to send Twitter updates, post on Facebook or maintain a blog. The one caveat to this rule is that employers must be consistent in enforcing this social media policy; an employer cannot discipline employees when they make negative comments about the company, but ignore other non-work related activity while an employee is on the clock.

Second, an employer can, and must, intervene when an employee's online actions are placing the employer at legal risk -- such as betraying confidential information, or violating the Federal Trade Commission's rules on endorsements of the company's products, or threatening or harassing a co-worker. Third, employers can act when an employee has crossed a line and acted disloyally. Complaining about your boss or your pay isn't disloyal; telling people that the hospital where you work is unsafe would be disloyal - though if there are real safety concerns raised, the employer needs to address them.

3.) Can an employer legally examine a candidate's social media presence as part of the recruitment process?

Kinder: The concern about recruiting with social media is primarily one of allowing improper information (such as race, religious beliefs, sexual orientation, etc.) to "taint" the selection process. In addition to including numerous pictures -- which will reveal a candidate's age, sex and race -- social media sites allow and encourage individuals to proclaim their religious and political beliefs. Once an employer reviews the website, it will be charged with knowledge of all this information that should not be included in the hiring process.

My general advice to employers is not to review a candidate's social media presence before selecting the individuals to interview, so that the interview selection is devoid of or blind to any improper information. No matter what, any employer that plans to review any candidate's social media should obtain the candidate's written consent to conduct searches of all internet and social media websites, preferably as part of the release in the employer's application.

4.) How should an employer prevent a legal situation around social media policy from occurring in the first place?

Galatas /Torres: It’s very simple. Educate and communicate policy and expectations to staff using several different methods and venues. In addition, an employer should welcome all feedback from employees, both positive and negative, and use the information to increase employee engagement and employee retention and company advocates, to help address employee concerns that otherwise might not surface, and transform the organization into an employer of choice.

Kinder: It seems when it comes to social media, the best defense is still a good offense. So if you don’t have a policy in place or one that is about blocking social media in the workplace, now is the time to a social media policy. That said, the NLRB case is proof that, even with “air-tight” social media guidelines, employers are still vulnerable to complaints and -- worst case scenario -- lawsuits. So the bottom line here is to use this advice as a starting point to understand how you should (and should not) be using social media as an employer.